Stevens; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 56

Stevens; Secretary, Department of Social Services and (Social services second review) [2016] AATA 56 (5 February 2016)

Division	GENERAL DIVISION
File Number	2014/4620
Re	Secretary, Department of Social Services
APPLICANT
And	Christine Stevens
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	5 February 2016
Place	Adelaide

The decision under review is varied so as to provide that Mrs Stevens was qualified for disability support pension only from 1 March 2014.

........... [Sgd] .....................................

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether respondent’s conditions fully diagnosed, treated and stabilised during assessment period – Whether impairments attract a rating of 20 points or more under the Impairment Tables – Whether continuing inability to work – Respondent prevented, solely because of impairments, from improving capacity to find, gain or remain in employment through continued participation in program of support – Decision under review varied.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

CASES

Secretary, Department of Social Services and Smith [2015] AATA 578

REASONS FOR DECISION

Deputy President K Bean

5 February 2016

1. On 20 December 2013, the respondent, Mrs Stevens, lodged a claim for disability support pension (DSP). That claim was rejected both at first instance and upon review by a Centrelink Authorised Review Officer (ARO). However, on 29 July 2014, the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s decision and decided that, subject to all other requirements being met, Mrs Stevens was eligible to receive DSP from the date of her claim, as she satisfied the provisions of subs 94(1) of the Social Security Act 1991 (the Act).

2. On 8 September 2014, the applicant, the Secretary of the Department of Social Services (the Secretary) sought review of the SSAT’s decision by this Tribunal, giving rise to these proceedings.

   LEGISLATION AND ISSUES

3. In broad terms the issue before me is whether Mrs Stevens was qualified for DSP as at the date of her claim on 20 December 2013 or within 13 weeks of that date (the assessment period).[1] The Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[2]

   [1]     Social Security (Administration) Act 1999, Schedule 2, clause 4.

   [2]     Secretary, Department of Social Services and Smith [2015] AATA 578.

4. Qualification for DSP is governed by s 94 of the Act, which, at the relevant time, relevantly provided as follows:

   94    Qualification for disability support pension

   (1)A person is qualified for disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)     the person has a continuing inability to work;

   …

   Continuing inability to work

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note: For work see subsection (5).

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)    the availability to the person of a training activity; or

   (b)the availability to the person of work in the person’s locally accessible labour market.

   …

   Severe impairment

   (3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   ...

   work means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market.

   ...

   DID MRS STEVENS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

5. The Secretary does not dispute that, during the assessment period, Mrs Stevens suffered from physical impairments, including lumbar spine degenerative disease, a basilar brain aneurysm, a right anterior gluteal medius tear, diabetes and fibromyalgia,[3] and therefore satisfied subs 94(1)(a) of the Act.

   AT THE RELEVANT TIME, DID MRS STEVENS HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?

   [3]     Secretary’s Statement of Facts, Issues and Contentions dated 4 August 2015, [4.10].

   The requirements

6. As set out above, subs 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.

7. The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:

   ·the condition causing the impairment is permanent; and

   ·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.

8. Further, for a condition to be considered permanent under the Determination:

   ·the condition must be fully diagnosed by an appropriately qualified medical practitioner;

   ·the condition must be fully treated and fully stabilised; and

   ·the condition must be more likely than not to persist for more than two years.

9. Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:

   ·whether there is corroborating evidence of the condition;

   ·what treatment or rehabilitation has occurred in relation to the condition; and

   ·whether treatment is continuing or planned in the next two years.

10. Subsection 6(6) provides that a condition is fully stabilised if:

    ·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    ·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    ·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.

11. Subsection 6(7) provides that reasonable treatment is treatment that:

    ·is available at a location reasonably accessible to the person; and

    ·is at a reasonable cost; and

    ·can reliably be expected to result in a substantial improvement in functional capacity; and

    ·is regularly undertaken or performed; and

    ·has a high success rate; and

    ·carries a low risk to the person.

    The relevant Tables

12. The relevant Tables in the context of this matter are Tables 1, 3, 4 and 7 and I have set out the most relevant parts of each Table below.

    Table 1 – Functions requiring Physical Exertion and Stamina

Points

Descriptors

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

Table 3 – Lower Limb Function

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

          (a)       the person is unable to stand for more than 10 minutes;

          (b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

          (a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

          (b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

Table 4 – Spinal Function

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

Table 7 – Brain Function

Points

Descriptors

5

There is a mild functional impact resulting from a neurological or cognitive condition.

(1)      The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:

(a)      memory;

Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.

(b)      attention and concentration;

Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.

Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.

(c)      problem solving;

Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.

Example 2: The person shows a lack of awareness of problems in some situations.

(d)      planning;

Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).

(e)      decision making;

Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.

(f)       comprehension.

Example: The person has some difficulty in understanding complex instructions involving multiple steps.

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)      The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)      memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.

Example 2: The person often misplaces items.

Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)      attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.

Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)      problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)      planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)      decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)       comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)      visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)      behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j) [sic]  self awareness.

Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

Lumbar spine condition

1. The Secretary does not dispute that, during the assessment period, Mrs Stevens’ lumbar spine condition was fully diagnosed, treated and stabilised. It is also not in dispute between the parties that that condition attracted 10 points under Table 4 of the Impairment Tables throughout the assessment period, and I also consider that to be the appropriate rating.

   Basilar brain aneurysm

2. The Secretary also does not dispute that Mrs Stevens’ brain aneurysm was fully diagnosed, treated and stabilised during the assessment period. The parties agreed that the condition attracted 5 points under Table 7 based on the opinion of Mrs Stevens’ General Practitioner, Dr Bruorton.

3. However, upon questioning by the Tribunal, Dr Thoo (an Occupational Physician called to give evidence by the Secretary) suggested that 10 points under Table 7 would be an appropriate rating.  His evidence in this regard was based on Mrs Stevens’ oral evidence that she “apparently” asks “a lot of questions over and over”, cannot remember things people “said 5 minutes ago”, and “sometimes” has issues with knowing what she needs to do on a particular day and finding things. Nevertheless, Dr Thoo acknowledged that Mrs Stevens’ General Practitioner would be better placed to make an assessment of her cognitive impairment.

4. In that regard, Dr Bruorton recorded the following in his report of 15 May 2015, by reference to the assessment period:

   There has been some minor functional impact on her neurological and cognitive function. This mild functional impact is particularly related to an effect on her short term memory as well as to her attention and concentration span. She has expressed the fact that she has difficulty concentrating on complex tasks and she also has experienced difficulty in solving complex problems that involved, in particular, numeracy skills.[4]

   [4]     Exhibit 2.

5. Unfortunately, I do not consider Dr Bruorton’s comments to be ‘corroborative’ of Mrs Stevens’ oral evidence as to the effects of the aneurysm, or consistent/compatible with a rating of 10 points. In those circumstances, I prefer the opinion of Dr Bruorton to that of Dr Thoo on this issue, namely, that Mrs Stevens’ impairment attracted a rating of 5 points under Table 7.

6. Ms Clark, who appeared on behalf of Mrs Stevens, contended that the aneurysm also attracted points under Table 1 (which relates to “Functions requiring Physical Exertion and Stamina”) because Mrs Stevens gets severe headaches when she exerts herself physically. Ms Clark’s submission was that a combined rating ought to be given under Table 1, taking into account both the headaches and the pain resulting from Mrs Stevens’ fibromyalgia condition. I will address this issue further in the context of discussing Mrs Stevens’ fibromyalgia and the resulting impairments.

   Right anterior gluteal medius tear

7. The Secretary accepts that this condition was fully diagnosed, treated and stabilised during the assessment period, but contends that it attracts a nil rating under Table 3. However, in his oral evidence, Dr Thoo indicated that Mrs Stevens potentially met the criteria for a 10 point rating, on the basis that she was unable to walk far outside her home during the assessment period, certainly from the time she began to regularly use a walking stick.

8. Mrs Stevens gave evidence that she is able to walk to her daughter's house, which is effectively two houses away (i.e. in a cul-de-sac behind the house which is on the opposite side of the road to Mrs Stevens’ house). She said that she takes her walking stick with her “just in case”, and that although she can walk there, her daughter needs to “drop [her] home”. She also uses her walking stick at other times, and needs it to be able to walk uphill or get down steps. Her evidence was to the effect that this had also been the case during the assessment period, although she said she had only used a walking stick since early 2014—about a year after her aneurysm in February 2013.

9. In his report, Dr Bruorton suggested that this condition rated 5 points under Table 3. However, he recorded that:

   ... this condition causes her the most discomfort with persistent pain and a marked affect on her every day activities. It certainly affects her ability to walk for prolonged periods ... and prevents her from being able to use stairs.[5]

   I consider that this opinion is corroborative of Mrs Stevens’ difficulty walking, and not necessarily inconsistent with a rating of 10 points. I note that Dr Thoo took a similar view in the course of his oral evidence. Of course, it would have been preferable if Dr Bruorton had been available to give oral evidence as to the potential application of the 10 point criteria, but doing the best I can on the evidence before me, I am satisfied that it is appropriate to allocate 10 points for this condition as at early March 2014, by which time Mrs Stevens had apparently begun to use a walking stick. As the evidence does not establish that Mrs Stevens was unable to stand for more than 10 minutes, or needed to use a walking stick prior to March 2014, I am not satisfied that she met the criteria for either a 5 or 10 point rating under Table 3 between the date of her claim and 1 March 2014.

   [5]     Exhibit 2.

   Diabetes

1. Even if this condition was fully diagnosed, treated and stabilised, the parties agree, and I am also satisfied, that it would attract a nil rating under the Impairment Tables.

   Fibromyalgia

2. The Secretary contends that Mrs Stevens’ fibromyalgia was not fully treated during the assessment period, because there is no evidence of treatment such as low-grade antidepressants (for pain relief) and an exercise program having been undertaken.

3. However, Dr Thoo’s evidence was to the effect that there is no cure for fibromyalgia—the purpose of treatment is symptomatic relief only. He also indicated that it tends to be a long-term condition, and if Mrs Stevens had the condition in March 2014 (which she did[6]), he would not have expected any material change in the condition in the ensuing 12 – 24 months, regardless of what treatment was provided. For those reasons, he indicated that he regarded Mrs Stevens’ fibromyalgia condition as having been fully diagnosed, treated and stabilised as at March 2014. Whilst he was specifically asked about that date however, the effect of his evidence was that, given Mrs Stevens was diagnosed with fibromyalgia in 2011, he regarded the condition as having been fully diagnosed, treated and stabilised throughout the assessment period.

   [6]     Mrs Stevens was diagnosed with fibromyalgia in 2011 : Exhibit 2.

4. I note that the Determination allows a condition to be regarded as fully stabilised if further treatment is not expected to result in significant functional improvement within two years. On the basis of Dr Thoo’s evidence, I have accordingly concluded that Mrs Stevens’ fibromyalgia condition is properly regarded as having been fully diagnosed, treated and stabilised as at the assessment period, and can therefore be given an impairment rating.

5. I note that Dr Thoo’s opinion was that, taking into account the effects of the headaches Mrs Stevens suffers as a result of her aneurysm, and the effects of her fibromyalgia, her conditions also attracted a further 10 point rating under Table 1.

6. I have considered whether allocating such a rating would involve double counting of Mrs Stevens’ impairments. However, noting that Mrs Stevens’ headaches are not taken into account under Table 7, and that her fibromyalgia affects numerous parts of her body, particularly her upper body, I have concluded that it is appropriate to award an additional 10 points under Table 1, and this does not involve double counting of any impairment.

   Conclusion

7. As I have found that Mrs Stevens’ impairments attracted 35 points under the Impairment Tables by the end of the assessment period, and 25 points throughout the assessment period, I will next consider whether she had a continuing inability to work.

   DID MRS STEVENS SATISFY THE PROGRAM OF SUPPORT REQUIREMENTS?

8. Section 5 in Part 2 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) relevantly provides:

   (1)    A person has actively participated in a program of support if:

   (a)   the person has:

   (i)complied with the requirements of the program of support; and

   (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

   (b)   subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

   (c)   subsection (6) is satisfied in relation to the person and the program of support.

   ...

   (5)This subsection is satisfied in relation to a person and a program of support if:

   (a)   at the relevant date of claim, the person is participating in the program of support; and

   (b)   the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

   As I understand it, there is no dispute that Mrs Stevens met the requirements of subs 5(6) of the POS Determination, which requires a person to provide the Secretary with certain information about the program of support.[7]  It is also clear that she was participating in a program of support at the date of her claim, which she commenced in July 2012.[8]

   [7]     See, for example, Exhibit 8.

   [8]     Exhibit 8.

9. In his oral evidence, Dr Thoo opined that a program of support would not have made any difference to Mrs Stevens’ ability to work and that it would not have improved her capacity for work. He noted that her conditions were stable and that he could not see a lot of scope for the conditions to improve. Later in his evidence, Dr Thoo confirmed that activities offered by a program of support, such as resumé writing, would not have improved her prospects of employment after she suffered the aneurysm in February 2013.

10. Mr Burgess, who appeared on behalf of the Secretary at the hearing, contended that the program provider is best placed to assess whether a person will continue to benefit from a program of support, and noted that Dr Thoo only saw Mrs Stevens on one occasion in December 2014. However, in my view, an Occupational Physician is in a good position to give an opinion as to the effect of a person’s impairments on their capacity to work, and the extent to which any incapacity can be mitigated by job seeking assistance. I also consider an Occupational Physician such as Dr Thoo to be better placed to give an opinion on these matters than a program provider with no medical training.

11. Accordingly, on the basis of Dr Thoo’s oral evidence, I am satisfied that as at the date of her claim for DSP on 20 December 2013, Mrs Stevens was prevented, solely because of her impairments, from improving her capacity to find or gain employment through continued participation in a program of support. It follows that she satisfied the program of support requirements for the purposes of the Act.

    DID MRS STEVENS HAVE A CONTINUING INABILITY TO WORK?

12. I also accept the evidence of Dr Thoo[9] and Dr Bruorton[10] that Mrs Stevens’ impairments were sufficient to prevent her from doing any work (of at least 15 hours per week) independently of a program of support within two years, and from undertaking a training activity during those two years. However, I note that both doctors’ opinions in that regard were based in part on the impact of her lower limb impairment, which I have concluded did not attract an impairment rating until 1 March 2014. Accordingly, I have concluded that Mrs Stevens did not satisfy the requirements of subs 94(1)(c) until 1 March 2014.

    [9]     Exhibit 6, p 6.

    [10]    Exhibit 2.

    CONCLUSION

13. As I have concluded that Mrs Stevens satisfied subss 94(1)(a), (b) and (c) of the Act as at and from 1 March 2014, I have decided to vary the decision of the SSAT so as to provide that Mrs Stevens was qualified for DSP only from 1 March 2014.

    DECISION

14. The decision under review is varied so as to provide that Mrs Stevens was qualified for DSP only from 1 March 2014.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

.......... [Sgd] ...................................

Associate

Dated 5 February 2016

Date of hearing	14 December 2015
Advocate for the Applicant	Mr A Burgess
Solicitors for the Applicant	Sparke Helmore Lawyers
Advocate for the Respondent	Ms S Clark
Solicitors for the Respondent	South East Community Legal Service Inc.